So, I thought that I would opine on the mass shooting at Douglas High School. As many of you know, I was raised in Broward County. Douglas opened the year after I graduated from Nova High. For the record, yesterday’s massacre was the 18th mass shooting in the United States in just the first 45 days of 2018.

I spoke earlier with my sister, who resides within about 30 minutes from Douglas. She wept — her friend’s daughter, all of 14-15 years old — was murdered at Douglas. She wept over the fact that this good kid would never get married, never have kids, never experience the continued wonderment of life. I, myself, came to some tears.

Sadly, once again, nothing will happen — there will be no official action outside of a call for prayers and a convenient line not to “politicize” the issue. Yet, as we all know, there should be a real response, with strict gun control being enacted, the removal of the prohibition on lawsuits against the gun industry being enacted, and an official call for formal investigation of the nepotistic, likely criminal relationship, between the industry, the NRA and state/federal lawmakers.

The gun lobby, inclusive of gun manufacturers and their paid ‘special interest’ group, the NRA, control the Republican Party and, sadly still, at least a few Democrats. I honestly believed that the massacre at Sandy Hook, from the past 5 years, of small children would finally force the GOP-controlled Congress (and, separately, FL Legislature) to take real action. I was wrong — since that time, I have remained cynical that any subsequent mass shooting would result in the creation of progressive public policy on guns.  I hate my cynicism in this matter — fifteen years ago, I served as regional counsel for the Brady Campaign Against Gun Violence; at that time, there still remained some sense of cautious optimism that we could maintain the gun control laws enacted early during the Clinton Administration and, hopefully and slowly broaden them.

As a former Professor of Constitutional Law at UCF, let me set the record straight for those who “love their guns:” there is no constitutional right to own a gun — the plain language of the Second Amendment effectively allows for the modern equivalent of the National Guard to own weapons. Also, even if there were such a right, such rights are normally subject to limitations — public safety being one of those limitations often argued by Government to limit those rights.

So, my sister told me that I made the right decision to move to Canada, and to remove my child from the mania. As I have stated since my relocation to Nova Scotia, one of the reasons impacting our decision to move was the inundation of gun violence — violence which I observed first-hand every time I attended an officer-involved shooting in my role as private labour counsel for the Police Benevolent Association.

In closing, Douglas High has generated a direct impact on me, occurring in a high school in the county where I was raised, where I attended grade school, and where my mother taught school. The shooting at Pulse — occurring a two-minute drive from my former home in Orlando — left me with the same numb, dumbfounded sense. I am an American; and, yet, I do not recognize my country and former home. And, I do not perceive how there will occur a departure from the current insanity.

The post A Comment on Yesterday’s Mass Shooting at Douglas High appeared first on Halifax Law.

I will be continuing to work very hard to vindicate this client — wrongfully accused.  As always, going against the Crown can be exceptionally challenging.  In the current case, the Crown has — been conducting its own investigation for the past eight years.  Time to get to work!

The post White-Collar Criminal Defense: Good Result Brings Client Home for Christmas appeared first on Halifax Law.

The discussion was a lively one — especially, for me.  Sadly, I was the only male attendee of this invaluable seminar.  I was also the only lawyer present who had both represented victims of sexual violence, while also having represented others (obviously, in completely different cases) criminally charged with sexual assault.  I hope that I was able to contribute to the discussion by bringing in some perspective from — at a minimum — the criminal defence side.

Lawyers are confronted with the difficult paradox of representing the client’s interests vs. representing the best interests of society.  Sometimes, there are many that will view such interests as competing.  However, from the criminal defence side, those interests are typically viewed as consistent.  The representation of the criminal defendant charged with sexual assault is viewed as vindicating society’s interests in justice, and to the overall objectives of the Charter of Rights — ensuring that the Crown abide by its burden to prove guilt beyond all reasonable doubt, and further ensuring that the innocent are not the subject of wrongful conviction.

Now, some of my colleagues from last night’s discussion would disagree with this proposition.  Indeed, one mistakenly believed that the only goal of the criminal defence lawyer was to “win” the case.  I contested such a stereotype, and also disagreed with applying such a label to Crown prosecutors.  Both sides in a criminal case — prosecution and defence — hold unique roles, roles intended to vindicate separate interests.  In one case, the Crown is seeking to fulfill society’s interest in justice by bringing to trial cases where there is a reasonable opportunity to secure a conviction.  At the same time, the criminal defence lawyer is attempting to similarly achieve vindication of our constitutional system of justice by compelling the Crown to meet its burden, and by providing a diligent defence to the charged client.

So, are these perspectives consistent with the needs of alleged victims of sexual violence?  Perhaps, not — at least, not all of the time.  A conscientious prosecutor will attempt to work with their alleged victims to prepare them for a difficult process, and will certainly attempt to empathize with that individual while remaining conscious of their individualized needs.  This is not an easy road, as the prosecutor is also required to represent the interests of society in bringing the guilty to justice.

The position of the criminal defence lawyer is all the more peculiar, as the interests of the client charged with the sex crime becomes tantamount.  It is extremely difficult to focus on the issues surrounding the alleged victim of sexual violence while attempting to provide diligent, effective representation designed to vindicate a charged client’s constitutional interests.  Plus, there is a general feeling in the defence community that the interests of alleged victims/victims is already being safeguarded by the Crown, and by those support services that are designed to address victimization.

Last night, one of my fellow participants raised the prospect of the criminal defence lawyer pushing a client to accept a plea, in lieu of forcing possible victims to suffer the strain of testifying in court at trial.  Again, I profess some difficulty with embracing such a notion to this extent — to the extent that it presses us to ignore a client’s own interests and to substitute a conflicting interest.  That being said, criminal defence lawyers — generally speaking — take reasonable steps to secure a fair plea agreement from the Crown, present it to the client, and — if it is believed by the lawyer to be in the client’s best interests — recommend acceptance of the ‘deal.’  We can be persuasive, but we cannot impose our will over that of the charged client.  Ethically, the criminal defendant has carte blanche to decide whether or not to proceed to trial.  In some instances, the decision of a client to go to trial may not necessarily be privately endorsed by the lawyer — nonetheless, the criminal defence lawyer is duty-bound to accept this decision, and to go forward with reasonable diligence.

Of course, from the perspective of one who has represented victims of sexual violence, my perspective as a lawyer changes.  I must diligently effectuate the victim’s interests — whether when involved in a civil lawsuit versus the perpetrator of sexual violence, or in engaging in other ethical, lawful methods to fulfill a client’s interests.  Recently, without going into any real detail, a client — and a past victim of sexual violence — did not wish to pursue criminal charges or civil suit against her abuser, except as a method of last resort.  Rather, she wanted the perpetrator to simply go far, far away.  So, after making an initial effort to persuade her otherwise — based upon my perception of society’s interests in justice against the perpetrator — I recognized the deep, personal, psychological interests of my client.  I was required to — paramount to all others — effectuate her interests.  So, after a period of days, I successfully met her objectives — the perpetrator went far, far away.

The bottom line is that these issues are never easy, and require a bit of perspective — and education.  The possible failure here is that of lawyers and judges to (1) become fully educated regarding these issues; and (2) failing to speak out against issues of sexual violence.  Hopefully, my participation in last night’s seminar; this blog posting; and my dedication to continuing to vocalize on these issues will play a small part in changing this landscape — of addressing these notable deficiencies.

I will end this post by going one step further: addressing an issue(s) besetting my law alma mater, Florida State University. Over the past year, it has become a matter of public knowledge that players on the FSU football squad may have been engaged in criminal activities, including sexual assault.  Indeed, when reading two recent, compelling New York Times exposes on the matter, it appears that these players have been insulated from public accountability by both law enforcement and university officials.

Today, USA Today released its own interesting piece:  http://usat.ly/1wAmcjO.  Based upon what I have read, it appears that — in the case of the alleged victim of sexual violence — there has been a perceived, decided effort by FSU officials to undermine her interests and to humiliate her, all in the interests of protecting a star quarterback, one who cannot remain out of trouble.  Where is the accountability?  Well, let us start with those individual(s) targeted in the above USA Today piece:  the head coach of the FSU football team.  He needs to go — by ignoring the perceived lawlessness of several members of the team, he is — I believe — only encouraging additional acts of those same players.  Profit and football victories can never substitute for societal interests in justice, nor the rights of victims of violence, especially the young lady who alleges a case of sexual violence.

As members of the legal community, we are in a position to speak out — indeed, our voices should carry greater credibility, as it is our voices which can, together, push change in both our legal and political processes.

The post Professional Ethics: Working With Victims of Sexual Assault appeared first on Halifax Law.

This is a tough case.  For those who have not reviewed the above link, or are otherwise unfamiliar with the case, there remain ongoing perjury prosecutions against Mounties involved in the TASER-induced death of a suspect, Robert Dziekanski, back in 2007.  The case represents an interesting, albeit not so rare, cross-section between Criminal Law, Human Rights Law and Labour Law.  Interestingly, I was involved — as lawyer — in two, similar matters.  In both cases, I was representing the police officers.  There was always an interesting di/trichotomy between my trio of roles as both Human Rights Lawyer and Labour Lawyer, especially as it pertained to representation of police officers involved in either administrative disciplinary and/or defence of criminal charges.

The troubling aspects of the case commence with the events leading up to Dziekanski’s death.  The use of TASERs, especially in what appears such brash and unbridled fashion, would appear to constitute an extreme, disproportionate use of force.  Surprisingly, the Crown refused to pursue charges of manslaughter against these officers.  The use of TASERs, the subject of so much publicity in both the U.S. and Canada, has shed light on both the dangers of the device, and its dangerous — at times, arbitrary — use against citizens.

Notwithstanding, it appears that the Crown instead decided to pursue perjury charges against the four RCMP troopers.  This is bizarre:  as Crown documents apparently support, there is no real chance to secure convictions on perjury due to the very nature of the offense.  Boiled down, per the Criminal Code, at secs. 131, 132, the charge requires that the defendant(s) knowingly and intentionally make a false statement of fact.  Further, I would inject that any such misstatement should be a material one — a misstatement that was essential to the underlying facts of the death of Mr. Dziekanski.  Already, the Crown failed on one of its prosecutions.

Now, that being said, even though I believe that the Crown will have difficulty securing convictions from any of these RCMP troopers, I do believe that there is a reasonable basis for proceeding with the prosecutions, based upon the events surrounding the case, and the public purpose to ensuring that these troopers are prosecuted in some regard.  Why?  The disproportionate use of force appears evident from the video footage.  Indeed, there is likely additional video footage; unfortunately, that footage — per at least one news report — was seized by law enforcement, and then lost.

So, the result is a man killed by — from the footage — the unlawful use of force by law enforcement; the failure of the Crown to prosecute on one front; and the failure of the Crown to be able to successfully prosecute on a lesser fronts.  I have defended police officers on use of force that falls squarely within the defined matrix; I do not see where — based upon the video footage — how, in this particular case, there was not more done to address the failure of law enforcement to conform to acceptable uses of force to apprehend a troubled individual who did not seem to present any real danger to the public at the time of his assault by RCMP.

On the more mild labour front, it would be interesting to discover what administrative charges were leveled against the four, and the status of their positions within law enforcement.  At present, I only know that one of the troopers has resigned his position with the agency.

The post Human Rights/Criminal/Labour Law: The Perjury Prosecutions of Mounties in the Dziekanski Case appeared first on Halifax Law.

http://transcripts.cnn.com/TRANSCRIPTS/1204/11/ijvm.01.html

http://transcripts.cnn.com/TRANSCRIPTS/1204/12/ijvm.01.html

Well, here are the transcripts for my recent appearances.  Last evening proved interesting, as I was finally able to push my way through into proving some substance on issues that the public is — thus far — not really discussing on this case.  Really, without regard to my status as a representative of one of the eyewitnesses to the Martin killing, this case presents us with a fascinating set of legal issues including, but certainly not limited to the following:

1.  The immunity/”stand your ground” issue, and when it can be raised.

2.  The potential to have an adversarial preliminary hearing per Florida Rule of Criminal Procedure 3.133, that — if successful — could result in Zimmerman being released on his own recognizance.

3.  The potential for the defense to call 18th Judicial Circuit State Attorney Norm Wolfinger as a witness during a deposition to determine the basis for believing that there was not even probable cause to arrest; and

4.  The failure of State Attorney investigators for the Angela Corey (in the 4th Judicial Circuit – Jacksonville) to swear my client in prior to questioning her approximately a week ago.  If they also failed to swear in any other witnesses, then the Information is not based upon sworn testimony.  Accordingly, it would need to be dismissed.

Sadly, the probable cause affidavit upon which the State based its charge of Zimmerman is sorely lacking in information that would seem to support the upcoming prosecution and its effort to legitimize a charge of second-degree murder.  Indeed, I believe that this was a classic case of overcharging — and I am certainly not as impressed with Corey’s efforts thus far in handling this matter.  I also believe that the current charge, and the underlying facts used to support it, potentially reflect two issues:

1.  Corey is acting based upon her own future political aspirations, and potentially those of Rick Scott and Jennifer Carroll, and as part of that strategy;

2.  Has purposefully overcharged this matter in order to score political points while also — at the same time — working to undermine the overall prosecution of George Zimmerman.  She installs a senior prosecutor — 27 years experience — to handle the matter.  Although this appears sensible, it also reveals an individual who has virtually nothing to lose in the event this entire prosecution collapses, as may be well-intended by Corey & Company.  The assigned prosecutor is likely riding out the final three years of his career, and any backlash that could hit him would likely only precipitate a slightly premature retirement, with a decent pension and (at least) the promise of a book deal and public talk show appearances, a la Marsha Clark.

More to come ….

The post General/Criminal: Substantive Analysis on Zimmerman Case; Links to Transcripts from April 6, April 11, and April 12 CNN/HLN Appearances appeared first on Halifax Law.

Further, I have been saying for a couple of weeks that Zimmerman was arrested prior to yesterday.  Indeed, I believe that he was actually arrested on the day of the offense, 46 days ago, when he was placed in cuffs and brought down to Sanford Police.  Therefore, akin to discussions I have had with an able associate, perhaps Mark O’Mara should request (if the bond amount is set inordinately high in the coming minutes — I write as the bond hearing is occurring) an adversarial, preliminary hearing pursuant to Rule 3.133 of the Florida Rules of Criminal Procedure.  By doing so, O’Mara might be able to get around the inordinately high bond amount, and arrange for Zimmerman to be released on his own recognizance, i.e., without having to post any bond money and without any additional restrictions on his liberty prior to the trial.

Obviously, more to come ….  Wish me luck this evening.

The post General/Criminal: More Detailed Appearance Arising Tonight on HLN’s Jane Velez Mitchell Show appeared first on Halifax Law.

http://www.scotusblog.com/case-files/cases/missouri-v-frye/

http://www.scotusblog.com/case-files/cases/lafler-v-cooper/

The post Constitutional/Criminal Law: Rare Praise for U.S. Supreme Court Rulings appeared first on Halifax Law.

The government’s application for a search warrant to search all electronic devices in the target’s possession without a filter team and permitting a plain view is denied as constituting a general warrant. In re United States’s Application for a Search Warrant to Seize and Search Electronic Devices from Cunnius, 2011 U.S. Dist. LEXIS 87654 (W.D. Wash. February 11, 2011) (apparently just unsealed):

This matter comes before the Court on the government’s application for a warrant to search the residence of Edward Cunnius, to seize any computers or digital devices (collectively “digital devices”) that may be located at the premises, and to search all electronically stored information (“ESI”) contained in any digital devices seized from Mr. Cunnius’ residence for evidence relating to the crimes of copyright infringement or trafficking in counterfeit goods. Specifically, in addition to the search of the residence and the seizure of digital devices, the application requests the authority for investigative officers to: (1) search all ESI contained in Mr. Cunnius’ digital devices and related to the use of the devices; (2) conduct the search without segregation by a filter team; (3) conduct the search without foreswearing the plain view doctrine; and (4) permit investigative agents to obtain a second warrant if, during the search of the ESI, the investigating and searching agents find evidence of crime outside the scope of the instant warrant. On February 7, 2011, the Court advised the Assistant United States Attorney (“AUSA”) that the warrant, as presented, would not be granted. The United States has refused to accede to the Court’s view that a filter team and forswearing reliance on the plain view doctrine are appropriate, and indeed, required in this specific case. Accordingly, the AUSA requested the Court to file a memorandum opinion, so that the government can appeal. A copy of the requested warrant and affidavit in support is attached as Exhibit 1. That request has led to this opinion.Because the government, in this application, refuses to conduct its search of the digital devices utilizing a filter team and foreswearing reliance on the plain view doctrine, the Court DENIES the application as seeking an overbroad or general warrant in violation of the Fourth Amendment and the law of this Circuit.

The post Criminal/Constitutional: Great Opinion Re: Limits on Government’s Ability to Search Electronic Devices appeared first on Halifax Law.

I have heard about such occurrences way too often.  A former investigator first advised me of the ability of others to hack into the unsecured Wi-Fi of innocent users.  Also, there have been several cases involved innocent Internet users at file sharing sites (the most frequent example I have heard is the now/soon-to-be-defunct LimeWire) having their systems co-opted by (to adopt a commonly-used, albeit overgeneralized phrase) pedophiles who are able to place some type of malicious code on the innocent user’s computer, and then to use that computer to funnel child porn.  Too often, law enforcement and prosecutors have been too ready to jump into prosecuting, without taking the necessary time and effort to fully investigate these matters prior to destroying the life of the individual.  Don’t get me wrong — there are plenty of legitimate cases targeting those in possession of, or transmitting child porn. However, there are also cases where — as in the article linked above — the innocent end up becoming ensnared in something from which extrication is difficult, if not impossible.

The post Criminal Practice: Innocent Man Finally Vindicated on Child Porn Charge appeared first on Halifax Law.

When will a drug-detection dog’s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.

The issue of when a dog’s alert provides probable cause for a search hinges on the dog‘s reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog’s reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer‘s belief—in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer’s belief in the dog’s reliability as a predicate for determining probable cause.

. . .

… We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability. The trial court must then assess the reliability of the dog’s alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion.

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